Scalia's argument is anything but powerful. For openers, it completely ignores the shifting tides, the struggles, the reassessments, the modifications of prior practices that are at least as important in understanding our "traditions" as anything that Scalia points to. He is shilling for the Protestant Empire, in its crudest form, it seems to me, the form that prevailed when most states permitted Bible reading and prayer in the public schools. Scalia does not do history well at all, among other things.
-----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, July 12, 2005 6:15 PM To: Law & Religion issues for Law Academics Subject: RE: Government criticism of the Supreme Court onreligion-relatedmaterials I should think one answer would be clear: "Impeach Justice Souter" is hardly a cogent argument, or even much of a step towards a cogent argument. It would lead people to mock the city, rather than leading them to agree with it. If a city displays the documents that Justice Scalia cited, together with a plaque explaining the importance of our national tradition of recognizing God, and the city's view that this tradition shows the error of the Supreme Court's decision, that would at least be something of a cogent argument (though for many not a complete one). Justice Scalia's dissent is powerful precisely because it includes so much governmental religious speech from the Framing era and since. Seems to me that other dissenters should be free to make similarly powerful arguments. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet > Sent: Tuesday, July 12, 2005 2:52 PM > To: Law & Religion issues for Law Academics > Subject: Re: Government criticism of the Supreme Court on > religion-relatedmaterials > > > I haven't commented on this thread, mostly because I thought the > answer was pretty straight-forward from Justice Souter's > invocation of "common sense" as a legal technique in addressing > this kind of problem. > > I could get fancier about this (in the initial version, what does > common sense tell you about the purpose of presenting the > protest in this particular form? in the revised version, what does > common sense tell you about the choice of this particular form of > "vivid" display when other "vivid" displays of protest are clearly > possible, like displaying an "Impeach Justice Souter" banner?), > but in some sensse that would be inconsistent with the technique. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
